Irrational publishing and recursive publics July 31, 2008
Posted by Kevin Smith in : Scholarly Publishing, Technologies , 3commentsA courtesy “heads up” from Ellen Duranceau, a scholarly communications colleague at MIT, alerted me to this podcast about scholarly communications with Dan Ariely, the author of the fascinating and best-selling book “Predictably Irrational.” This 20 minute interview is well worth the time for both librarians and scholarly authors who are concerned about the current state of scholarly publishing and interested in its future. I am looking forward to listening to the other interviews that MIT makes available.
Ariely was a Professor of Behavioral Economics at MIT, which is why Ellen is interviewing him, and he recently moved to a similar position here at Duke, which is why she alerted me to the podcast. Ellen deserves great credit for the insight – “I wish I had thought of that” – that Ariely would be a really interesting person to ask about the state of scholarly publishing. Not only because has he recently made the successful transition from obscure academic author to public intellectual, which he discusses in the interview, but because the theories and experiments that have made his work so well-known themselves suggest important insights into the scholarly communications system.
Much of Ariely’s work focuses on the odd things that happen when economic and social norms collide and intermingle, which is exactly what happens in the system of scholarly publishing. Faculty authors are largely driven by social norms and reward structures that are quite different from, and increasingly at odds with, the economic incentives that drive publishers. The result is a strange and dysfunctional system.
During the interview, Ariely refers to his “back of the envelope” calculation that it costs a university over $50,000 to support the production of a single scholarly article, which indicates how badly askew the economics of publishing are, when universities not only subsidize production to that extent but also repurchase that subsidized content after publication. It is precisely because the academy is governed by an entirely different set of social norms that we have allowed the economic situation to get so far out of hand. But Ariely’s endorsement of a more open and accessible system of scholarly communications is not itself, finally, based on these economic conditions. Rather, he has discovered, through his own experiences with the public attention he has received, the great benefit both to the individual scholars and to society, of open and interactive scholarship. The ultimate take-away from this interview for me was that scholarship itself can be improved by reaching out to larger publics and incorporating those publics into the work of research and writing.
As a sort of “proof of concept” of Ariely’s claim, I was interested in the experiment in a new kind of “hybrid” publishing going on with a recent book by Rice University professor Chris Kelty. “Two Bits: the Cultural Significance of Free Software” is published by Duke University Press (you can buy a copy here), but is also available online on this author-maintained website, twobits.net. One can read the book online, comment on its various chapters, and “modulate” with it – use it in small chunks to create new scholarship. Kelty uses the concepts of re-mix and recursive publics to experiment with what we really mean when we say that scholarship builds on the works of others. This experiment with modulations will be the most interesting part of Kelty’s new model of scholarship to follow, but in light of what is discussed in the Ariely interview, I think there are two more basic questions to ask about this kind of hybrid model for scholarly publishing. First, will online availability depress sales of the print book, or will people who come to it first online be motivated to buy a hard copy (as I was)? Second, will the experiment in public comment and reuse really result in improvements to the text and to scholarly output that builds creatively upon it? This latter question is a way of asking if the results that Dan Ariely reports in his interview can really be replicated for scholars who do not attract the same level of celebrity.
Copyright reform — what would “green” copyright look like? July 25, 2008
Posted by Kevin Smith in : Copyright Issues and Legislation, Technologies , add a comment
My wife frequently accuses me of finding copyright and other intellectual property issues everywhere, often where no “normal” person would perceive such a question. So I was both surprised and vindicated to see discussions of “green” copyright in a couple of places recently; surprised because even with all my obsessing about copyright, I had never considered how one might make a more eco-friendly copyright law.
The most comprehensive discussion I have read so far about green issues for copyright reform comes from Michael Giest, the Canadian copyright scholar who is leading a powerful grass-roots opposition to the new proposed copyright law in Canada — Bill C-61, introduced in Parliament several months ago. In a column for the Toronto Star, and again on his fascinating blog site, Geist lists several problems with the proposed law that could hamper efforts to improve the environment (or at least slow the harm we are doing to it). Since a major complaint about the Canadian proposal is that it looks too much like US copyright law, it is fair to assume that these “Canadian” issues are US issues as well:
- Copyright law can impact our ability to recycle computers and other electronic devices in order to reduce the amount of “techno-waste” that is generated each year. Protections for software in general and especially prohibitions that prevent circumvention of digital protection measures can prevent new users from gaining access to recycled devices. It is no secret that Apple want to sell each of us a new iPhone every year or so, but there is potential environmental impact to legal enforcement of that business policy. Giest refers to a US case where the potential for this kind of ecological harm was very real — Lexmark v. Static Control Components, in which Lexmark tried to use the DMCA anti-circumvention rules to prevent a competitor from making chips that would allow the re-filling of laser printer ink cartridges. The courts found that such an application of US copyright law would be anti-competitive, but it is worth noting that a contrary decision might also have been anti-environmental.
- Protections that restrict copying of software and storage of copyrighted materials on shared networks can inhibit the efficiencies gained through “cloud computing.” If memory-intensive research — crunching huge data sets for example — can be done by a network of computers rather than at a single site, unused capacity can be exploited to reduce the need for multiple institutions to obtain massive computing capacity that may be used infrequently. Copyright law can have a lot to say about whether such shared projects will be feasible.
- A similar issue is raised regarding the possibility of consumer storage of memory-intensive materials in networked systems. In the US there already exist network-based video recording services that decrease the proliferation of digital devices that increase energy usage and eventually end up in landfills. US courts have not been consistent in their approach to these services, in part because our copyright law does not directly address the status of copies made solely for personal use. The new Canadian proposal would take up that issue and would authorize only a single copy of consumer-purchased songs or videos. With such a law, not only would consumer choices be severely restricted, the need for many individually owned storage devices would burgeon — good for the consumer electronics industry but bad for the environment.
In addition to these copyright issues that could have significant ecological impact, there are also “green” patent concerns. A recent study has shown the tremendous growth in patents issued for inventions, software and business methods that are aimed at environmental processes and problems. Because there is already so much controversy (and litigation) around software and business patents in general, it is a legitimate worry that the growing number of ecological patents could actually impede the progress of innovation in environmental sciences rather than promote that progress. Patent law, like copyright, is intended to promote innovation through a careful control grant of monopoly, but recent research has shown the significant danger that patents, and the cost of prosecuting and defending them, may be becoming an obstacle to innovation rather than an incentive; a nice, but dated explanation of the potential problems can be found here; this book review of 2008’s “Patent Failure” gives a more up-to-date review of the economic evidence that innovation is being stifled. Research into how to resolve our environmental dilemmas is too important to allow it to be slowed by the inefficiencies of our patent system, and adds another argument for the need for comprehensive reform of US intellectual property laws.
Where should we spend our money? July 21, 2008
Posted by Kevin Smith in : Copyright in the Classroom, Open Access and Institutional Repositories, Scholarly Publishing , 3commentsThe attention paid in the last few weeks to the cost of textbooks and the promise, as well as the risk, of moving to e-texts has prompted me to consider the above question.
Some of the recent reportage has focused on e-textbooks as a way to reduce the costs students must pay for course materials; this article in USA Today is an example of this kind of story. There have also been several comments from open access advocates supporting the move toward open online textbooks; see this post by Georgia Harper and this one from Peter Suber.
There has also been some commentary recently on the abuse of new models of textbook distribution. The Boston Globe ran this article on “Textbooks, free and illegal, online” just a few days ago. It is unfortunate, but hardly surprising, that it is only in this article about “pirated” textbooks that the Association of American Publishers is quoted; they could do so much more if they were actively involved in a positive solution that could reduce textbook costs and improve access. But it is the faculty who write the textbooks who are quoted as seeking a legal solution, while the publishers merely resort to heavy-handed enforcement measures for a law that is rapidly becoming unenforcable in a technological environment for which it was never designed. The fuss usually works in individual cases — the Chronicle of Higher Education reports today that the specific site discussed is off-line — but it is ineffective to stem the digital tide.
But faculty do not come out unscathed in this discussion either, as is clear from this post about the practice of professors commissioning “custom” textbooks and receiving “royalties,” which William McGeveran of the University of Minnesota Law School calls “kickbacks,” from the required purchases by their students.
The lesson here seems to be that the digital environment is inevitably going to change the environment for textbooks as it has for most other kinds of intellectual property, for good or for ill. Georgia seems to feel that the publishers will eventually figure the market out and move to new profit models while supporting open access. But I think there is also an opportunity here for institutions to be more proactive and seek ways to invest in open access textbooks on a campus-wide level.
Why should schools consider doing this. First, with all the pressure that institutions of higher education are under to reduce the costs for students to attend, open access textbooks offers an avenue for proactive investment that will simultaneously reduce student costs and encourage faculty scholarship. Second, this is a place where universities actually can help combat copyright infringement. Universities have been made the scapegoats in the file-sharing wars, but there is really not a lot they can do to ameliorate that problem, especially since the vast majority of music and movie file-sharing does not occur over college and university networks. But by supporting open access to e-textbooks, we really can reduce the problem of infringement in that realm.
How can universities invest their funds in ways that will encourage open access textbooks and reduce costs (and therefore the incentive to infringe copyright) for students? I can think of three ways, off hand.
First, institutions could invest in infrastructure that would encourage new models for electronic course content. This means a great deal more than simply providing the storage space necessary for an institutional repository. Universities also need to support their faculty authors in efforts to retain copyright so that they can deposit their works in an IR and create new and unanticipated derivative works from those publications. The opportunity to combine materials located in an institutional repository in new ways would create a different spin on the custom textbook; it would offer a heretofore unimagined flexibility based on legal rights retained by the authors of the component parts and licensed to institutions or, using a Creative Commons license, to a broader group of users.
Second, universities and consortia could bring their purchasing power to bear to negotiate multi-user licenses for existing e-textbooks or new ones created in the commercial market. The current models all rely on students to each pay individually a licensing fee (putatively lower than the purchase cost of a hard copy) to obtain access, for a limited time, to an e-text. Multi-user site licenses could further reduce the price per user and give the university flexibility about whether to assess each student user for that lower cost or simply cite the funding to legislators as an investment in reducing student costs.
Finally, universities could make funds available for faculty to encourage the development of open access texts. There has been a great deal of talk recently about funding to support open access via “hybrid” publishing — traditional publications onto which an open access alternative is grafted if the author, or her institution, is willing to pay an added fee. It seems to me that a much wiser investment, and one with a greater return for the dollars spent, could be made by turning those funds to support faculty who want to create online open access textbooks that can be used by students on their own campuses and by others who teach similar courses. Adaptation by others, in that case, would provide an effective “peer-review” to measure the quality of the faculty author’s contribution. In this way, student costs could be reduced, faculty scholarship supported, and the real potential of the digital environment for collaborative learning more fully exploited.
Making Elsevier look good July 16, 2008
Posted by Kevin Smith in : Authors' Rights, Copyright Issues and Legislation, Scholarly Publishing , 2commentsFor many years, Dutch publishing giant Elsevier has been a kind of bête noir for academic librarians, serving as principal whipping-post for the exorbitant price increases that have been strangling off the scholarly communications system for over 20 years. But the ground has shifted somewhat, and we have recently observed some academic press and scholarly societies – agencies whose mission is, putatively, to serve research and scholarship – adopt policies that make Elsevier look almost scholar-friendly.
We have recently witnessed the unseemly spectacle of two at least nominally university-related presses suing a university to try to narrow the scope of fair use for academics, calling out by name some of the very authors upon whom they depend for the content that fills the pages of their publications. Now another organization that is supposed to represent scholars, the American Psychological Association, has turned to bite the hand that feeds it.
First there were the threats to sue a major American university library for allegedly using too many examples from the “APA Manual of Style” in the teaching materials it creates to help students learn how to use that citation format. Since continued sales of the Manual depend on students being trained to use it and faculty assigning it, and since there are other nearly identical and completely substitutable style formats available, it is hard to see what these threats could hope to accomplish. Shutting down one’s principal market is a radical and unproductive way to protect one’s copyright.
Now comes the news that the APA is announcing that authors publishing articles in its journals that are based on NIH-funded research “should NOT” deposit their own works in PubMed Central as is now required by law. Rather, they will be required to pay APA $2500 so that the articles can be deposited by the publisher. Since there is virtually no cost associated with the mechanics of deposit itself, and the NIH policy allows an embargo on public availability of articles of up to one year in order to protect the traditional subscription market, it is hard to see what this policy is intended to accomplish other than to force an additional income stream out of the faculty authors who already provide the APA with free content. And there is heavy irony in the APA’s assertion that they can do this “as the copyright holder.”
APA is trying to put its own authors between the proverbial rock and a hard place, and it is behaving as if theirs is a non-competitive market. This is not, in fact, the case – only two of the top ten psychology journals in 2007, based on impact factor, were published by the APA, and one non-APA journal editor expressed pleased surprise at the new policy because it was sure to benefit those other journals. But for years our faculties have behaved as if they were, indeed, captive to specific journals. As scholarly societies are driven, apparently by fear and anger more than a realistic business strategy, to treat the authors on whom they depend with such contempt, one can only hope that this misperception will begin to change.
Two simple and specific messages need to be delivered over and over to our faculty authors if this dysfunctional and abusive system is to change.
First, they need to be reminded that they do have choices about where they publish their work; there is no logic in remaining loyal to a particular journal when the publisher of that title has clearly decide to place profit and self-interest above the well-being of the academy, the discipline, or its scholarly authors.
Second, regardless of where they publish their research, scholars should resist transferring copyright to journal publishers. APA can only tell scholarly authors what that can and cannot do with their work after they have received a transfer of copyright; up to that point they must negotiate, not dictate. Academic presses can only sue universities over e-reserves because they have been given the copyright in those scholarly works in the first place. To cut the Gordian knot that is plaguing our scholarly communications system, we need to make an exclusive right to publish for a limited time (with reservation of some negotiable authors’ rights within that period) the standard for scholarly publishing agreements. As the original owners of copyright, forcing that change is within the power of faculty authors.
NOTE — Half an hour after this post was published, the APA web page referenced above no longer carries the policy announcement and says simply that the page is under review. We shall have to wait and see what APA comes up with, but the two cardinal points mentioned herein remain valid and urgent.
What can best practices do for us? July 11, 2008
Posted by Kevin Smith in : Authors' Rights, Copyright Issues and Legislation, Fair Use , 1 comment so farAs promised, I want to look at a different kind of “new tool” to help users of copyright-protected content figure out what they can and cannot do as they work on new creations.
Best practices are a relatively new phenomenon in the copyright environment. The Center for Social Media at American University, a joint project of School of Communications and the Washington College of Law, has really lead the way in creating statements of best practices around fair use in video production. The first one, produced in cooperation with several documentary film groups, is a Documentary Filmmakers’ Statement on Best Practices in Fair Use. That statement has proved very successful in gaining recognition both amongst filmmakers and from the ancillary organizations like the insurance companies that support and underwrite documentary film projects.
Next there was a report on user-generated video called Recut, Reframe, Recycle that spelled out six creative practices that, the report’s authors felt, were potentially legal but were in danger of being curtailed by the draconian measures being sought by many in the content industry to combat online sharing of video and music files. Even though creative remixing is a very different activity, both legally and in its value to society as a whole, much of the “anti-piracy” rhetoric seems unable to make even the grossest distinctions. Thus the stakeholders in that conversation felt the need to articulate another set of best practices, released last week.
The Code of Best Practices in Fair Use for Online Video is intend to provide support for the activities of filmmakers who create works like “Dramatic Chipmunk,” which is used to illustrate the report’s cover. Such works are new creations built from the building blocks of other people’s work. This, of course, was the original purpose for the “copyright bargain” Congress was empowered to make by the Constitution (although the Framers probably did not foresee some of the results of that bargain!). This new code of best practices describes itself this way: “This is a guide to current acceptable practices, drawing on the actual activities of creators, as discussed among other places in the study Recut, Reframe, Recycle: Quoting Copyrighted Material in User-Generated Video and backed by the judgment of a national panel of experts. It also draws, by way of analogy, upon the professional judgment and experience of documentary filmmakers, whose own code of best practices has been recognized throughout the film and television businesses.”
For me, an immediate question is how these statements of best practices differ from the various attempts to articulate guidelines to define fair use, attempts that have caused great anxiety and a notable “chilling effect” on fair use despite the best intentions of those who promulgated them. The quickest answer is that best practices are usually generated from within an industry or an industry segment, whereas guidelines have traditionally been negotiated between users and rights-holders. “Best practices” are not an attempt to define a “safe-harbor” that will necessarily protect one from lawsuit, especially since many such attempts have proved illusory in the past. Rather, their aim is to accurately describe a consensus with a particular user group about what is and is not acceptable. Such a consensus can serve a couple of purposes.
First, it can help prevent the kind of “self-censorship,” or chilling effect, that is all too familiar among users; the decision by a filmmaker to forgo the best shoot or abandon good footage because a copyrighted work was accidentally captured in some of the frames, for example. Best practices can provide reassurance to that filmmaker that what she hopes to do is well within the standard practice through her industry.
Second, best practices could provide courts with exactly the kind of “industry standard” that is useful in determining when to find infringement or to protect a particular use as fair use. These documents can provide courts with a synoptic view of what kinds of practices are necessary for professional filmmakers and amateur videographers alike to create new works. By spelling out what kinds of practice are needed, as far as fair use is concerned, for creativity to flourish, statements of best practice can show courts that the particular industry is acting in good faith and can provide a broader perspective on the specific issue that has come before that court.
Best practices will not solve all the problems in the highly contested world of copyright and user rights, but they can serve a useful purpose. It is important to distinguish that purpose from the more grandiose and unrealistic claims made for copyright guidelines. Best practices may not stave off lawsuits, but they can help courts judge those lawsuits fairly and they can help users avoid letting the fear of a lawsuit overwhelm their urge to create.
Note — after completing the above post I discovered this contribution to a debate about best practices, which I now call to the attention of interested readers.
